dissenting.
The Court holds that plaintiff must pursue a medical malpractice claim in the Division of Workers’ Compensation (Division) because the doctor who committed the alleged malpractice was provided by the employer. The Court affirms the lower courts’ holding immunizing plaintiffs doctor from tort liability pursuant to N.J.S.A. 34:15-8 on the basis that the doctor was a fellow employee. That holding insulates company doctors from tort liability for negligent conduct, thereby depriving employees harmed by their negligence of an adequate forum to redress their injuries. I disagree and would adopt the dual capacity doctrine relied on by Justice Handler in Boyle v. Breme, 93 N.J. 569, 570-77, 461 A.2d 1164 (1983) (Handler, J., dissenting), and permit injured plaintiffs to assert medical malpractice claims against a co-employee company doctor.
Moreover, in my view the Division is not the appropriate forum to litigate complex issues of medical causation. Plaintiffs claim should be litigated in the Law Division, the customary forum for the trial of medical malpractice claims.
*69I
A
The Workers’ Compensation Act (the Act) was enacted to insure that employees who are injured during the course of employment are compensated for their losses without having to prove the fault of the employer. Harris v. Branin Transp., Inc., 312 N.J.Super. 38, 46, 711 A.2d 331 (App.Div.), certif. denied, 156 N.J. 408, 719 A.2d 640 (1998). We have discussed previously the development of the Act and the purpose of workers’ compensation legislation. Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 173-76, 501 A.2d 505 (1985). The Act “involve[s] a historic trade-off whereby employees relinquished their right to pursue common-law remedies in exchange for automatic entitlement to certain, but reduced, benefits whenever they suffered injuries by accident arising out of and in the course of employment.” Id. at 174, 501 A.2d 505. Thus, a balanced no-fault system was enacted where “employees would receive assurance of relatively swift and certain compensation payments, but would relinquish their rights to pursue a potentially larger recovery in a common-law action.” Ibid.
In 1961, the Legislature amended the Act to provide for co-employee immunity. L. 1961, c. 2. N.J.S.A. 34:15-8, as amended, provides fellow employees with immunity from tort liability for their own negligent acts in the workplace. Volb v. G.E. Capital Corp., 139 N.J. 110, 117, 651 A.2d 1002 (1995); Wellenheider v. Rader, 49 N.J. 1, 9, 227 A.2d 329 (1967). The purpose of that amendment was to relieve employers from the burden of paying
common-law damages superimposed upon [their] workmen’s compensation liability by reason of either a legal, moral or practical obligation to indemnify [a] sued director, officer or supervisory employee, [and] the expense of carrying insurance to cover the personal liability of such supervisory personnel.
[Miller v. Muscarelle, 67 N.J.Super. 305, 321, 170 A.2d 437 (App.Div.), certif. denied, 36 N.J. 140, 174 A.2d 925 (1961).]
See also Maggio v. Migliaccio, 266 N.J.Super. 111, 116, 628 A.2d 814 (App.Div.1993) (noting that N.J.S.A. 34:15-8 defense applies where plaintiffs employer provides workers’ compensation bene*70fits and would be responsible for plaintiffs injuries). Professor Larson notes that pursuant to workers’ compensation laws an employer “gives up its normal defenses and assumes automatic liability” in exchange for immunity from employee common-law suits, and that that reasoning can be extended to a co-employee who is “entitled to expect in return for what he or she has given up ... freedom from common-law suits based on industrial accidents in which that co-employee is at fault.” 6 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 111.03[2] (2000). N.J.S.A. 34:15-8 thus protects fellow employees from common-law tort actions filed by workers who are injured or killed in the workplace. Volb, supra, 139 N.J. at 117, 651 A.2d 1002; Wellenheider, supra, 49 N.J. at 9, 227 A.2d 329; Estrada v. Hendricksaw Corp., 302 N.J.Super. 262, 266, 695 A.2d 323 (App. Div.1997); Bustamante v. Tuliano, 248 N.J.Super. 492, 494, 591 A.2d 694 (App.Div.), certif. denied, 126 N.J. 385, 599 A.2d 162 (1991).
B
Because of the unique service provided by company doctors, some courts, although a distinct minority, wisely have declined to extend co-employee immunity to them and have adopted the dual capacity doctrine. Declaring that “[mjedical malpractice is not an inherent risk of the brewing business,” in Wright v. District Court, 661 P.2d 1167, 1171 (1983), the Supreme Court of Colorado held that a brewery employee whose back injury was aggravated by the malpractice of a company doctor could maintain a malpractice claim against the company doctor because the doctor’s relationship with the employee *71A similar result was reached by the Supreme Court of Georgia in Davis v. Stover, 258 Ga. 156, 366 S.E.2d 670 (1988). There, the court declined to extend co-employee immunity to company doctors, finding that workers’ compensation laws were not intended to grant immunity for professional malpractice actions and stating that “a worker expects and trusts his treatment will be made by the doctor’s independent professional judgment.” Id. at 671.
*70was identical to that of a doctor in private practice with a patient. This relationship is distinct from the employment relationship; it entails different rights and duties. Clearly, a private doctor would be liable to [the employee] for malpractice. There is no logical reason to treat company physicians differently. Thus, the rule which immunizes employees from suits by their co-employees for negligence within the course of employment is inapplicable here.
[Id. at 1168.]
*71The majority view of this Court has been that company doctors are entitled to co-employee immunity for their negligent treatment of employee-patients. See Boyle, supra, 93 N.J. at 570, 461 A.2d 1164. Justice Handler, however, has argued persuasively against extending co-employee immunity to company doctors. In Boyle, Justice Handler reviewed the purposes of workers’ compensation laws and the implications of immunizing company doctors from liability as co-employees. 93 N.J. at 572-77, 461 A.2d 1164 (Handler, J., dissenting). He concluded that
[b]ecause of the lack of control exerted by the employer over the medical and patient-treating aspects of a house physician’s work, the independence ascribed to the medical profession, and the degree of skill, care and judgment associated with the practice of medicine, the house physician, when treating other employees, cannot be viewed simply as a servant in a master-servant relationship.
[Id. at 574, 461 A.2d 1164.]
Regarding the legislative intent underlying N.J.S.A. 34:15-8, Justice Handler observed that
in enacting the co-employee immunity provision of workers’ compensation laws, the Legislature did not contemplate that a physician ... was a fellow employee of patients whom he was medically treating. This result — excluding the licensed treating physician from co-employee immunity — does not unduly broaden the dual capacity doctrine or disserve the legislative purpose in furnishing such an immunity. Medical malpractice is not an inherent or normal risk of the business and employment of such an entity as [the defendant doctor’s government employer]. N.J.S.A. 34:15-8 was intended to cover accidental injuries arising out of and in the course of employment — the kinds of injuries that involve employment risks that are commonly and most frequently associated with an employer’s enterprise. In light of the unique stature of the medical profession and the professional obligations that devolve upon licensed physicians, which transcend any duties that may be imposed by an employer, it is unreasonable to conclude that the Legislature, through its co-employee immunity provision, intended to abrogate or narrow the rights, duties and obligations that flow from the doctor-patient relationship.
[Id. at 577, 461 A.2d 1164.]
*72In his concurring and dissenting opinion in Millison, supra, Justice Handler again challenged the application of N.J.S.A. 34:15-8 to immunize negligent company doctors:
In enacting the 1961 amendments to N.J.S.A. 34:15-8 granting co-employees immunity for negligent acts, the Legislature did not express or effectuate an intention to include doctors within the scope of that privilege. Indeed, granting doctors “co-employee immunity” does not further the underlying purpose of the 1961 amendment, but does undermine New Jersey’s public policy in deterring negligent conduct and fully compensating negligently-inflicted injuries. The “co-employee immunity” amendment was designed to abolish “causéis] of action in tort against a fellow employee ... [that] ha[d] frequently resulted in burdening the employer indirectly with common law damages superimposed upon workmen’s compensation liability by reason of either a legal, moral or practical obligation to indemnify the sued ... employee.”
[Millison, supra, 101 N.J. at 202, 501 A.2d 505 (Handler, J., concurring and dissenting) (quoting Miller, supra, 67 N.J.Super, at 321, 170 A.2d 437).]
In contrast to most employees whose workplace conduct implicates the responsibility of their employers, and who therefore are entitled to co-employee immunity, Justice Handler noted that employers ordinarily exert no control over the treatment rendered by company doctors:
In this case of doctors employed by companies, the lack of employer control and direction, the medical profession’s skill and distinct occupational personality, and the fact that medical services are not a product marketed by [the employer] militate strongly towards viewing doctors as independent contractors.
Since employers would not be liable for the negligence of the doctors they employ, applying the co-employee immunity to company physicians does not comport with the underlying purpose of the 1961 amendments in protecting employers from double liability. No public policy is advanced by including doctors within N.J.S.A. 34:15-8’s co-employee immunity. On the other hand, the Boyle rule perniciously allows company-employed physicians to operate undeterred at a level of performance beneath that which is expected of other members of'the medical profession at the expense of workers’ lives and limbs.
[Id. at 203-04, 501 A.2d 505 (citations omitted).]
II
A
Plaintiff claims that Dr. DePietro “negligently failed to exercise the degree of care required by accepted standards of good medical practice” in failing to recognize the cancerous tumor in his left leg *73during almost one year of treatment for continuous pain in that leg. In order to prove that medical malpractice claim, plaintiff must show that Dr. DePietro’s failure to diagnose his cancer aggravated that condition and increased the risk of recurrence. We first identified the essential elements of that cause of action in Evers v. Dellinger, 95 N.J. 399, 471 A.2d 405 (1984).
In Evers, the defendant failed to diagnose breast cancer. During the ensuing months plaintiff experienced severe pain and detected an increase in the size of the cancerous tumor. Id. at 402-03, 471 A.2d 405. The Court acknowledged the existence of a cause of action finding that a “progressive evolution of the malignancy during the period of delay until plaintiff received proper medical attention, occasioned by defendant’s earlier failed diagnosis, is a cognizable injury and constituted an actionable element of damages.” Id. at 407, 471 A.2d 405. In addition to recognizing the growth and spread of the cancer as “an injury in and of itself,” id. at 408, 471 A.2d 405, the Court found that “[a]n additional element of injury and damage derives from plaintiffs claims of anxiety, emotional anguish and mental distress.” Id. at 409, 471 A.2d 405. The Court also adopted a more flexible standard of proof, concluding that
plaintiff should be permitted to demonstrate, within a reasonable degree of medical probability, that the seven months delay resulting from defendant’s failure to have made an accurate diagnosis and to have rendered proper treatment increased the risk of recurrence or of distant spread of plaintiffs cancer, and that such increased risk was a substantial factor in producing the condition from which plaintiff currently suffers.
Id. at 417, 471 A.2d 405.]
In Evers, the Court noted “that the difficulties of identifying, defining, and proving injury in certain types of medical malpractice cases justif[y] the application of a standard of causation that is more flexible than that used in conventional tort claims.” Id. at 413, 471 A.2d 405. Because of the inherent difficulty of proving-negligence when the plaintiff is afflicted with a preexisting condition, the Court has continued to apply a lower burden-of-proof standard for plaintiffs to establish a prima facie case of negligence in this increasingly complex area of law. Gardner v. Pawliw, 150 *74N.J. 359, 377, 696 A.2d 599 (1997) (involving prenatal medical malpractice); Fischer v. Canario, 143 N.J. 235, 241, 670 A.2d 516 (1996) (concerning tumor misdiagnosis); Scafidi v. Seiler, 119 N.J. 93, 108-09, 574 A.2d 398 (1990) (involving prenatal medical malpractice); Dubak v. Burdette Tomlin Memorial Hosp., 233 N.J.Super. 441, 449, 559 A.2d 424 (App.Div.1989) (concerning fatal internal bleeding).
B
The majority has determined that the Division is the exclusive forum in which plaintiffs claim should be tried. The Division, however, is a forum not well suited to the trial of a medical malpractice claim where an injured plaintiff must prove negligence in order to receive compensatory damages. The Division’s customary function is to adjudicate causation in the context of no-fault claims. See Brock v. Public Serv. Elec. & Gas Co., 325 N.J.Super. 582, 588, 740 A.2d 167 (App.Div.1999) (noting that workers’ compensation court “was designed to establish a no fault system of compensation for workers who are injured or contract disease in the course of employment”). The Division’s judges are unfamiliar with medical malpractice litigation and with the determination of whether a physician deviated from generally accepted standards of medical practice, an issue customarily submitted for resolution to a jury. In my view, the trial of plaintiffs malpractice claim belongs in the Law Division.
Ill
For the reasons stated, I would reverse the judgment of the Appellate Division and remand the matter for trial in the Law Division. Justice Long joins in the dissent.
For affirmance and remandment — Chief Justice PORITZ and Justices O’HERN, COLEMAN, VERNIERO and LeVECCHIA— 5.
For reversal and, remandment — Justices STEIN and LONG— 2.